Thursday, January 30, 2014

Colorado is overtreating many low-risk sex offenders in the mistaken belief that they cannot be cured, an independent consultant has found, reported the Denver Post.
As a result, the state's Sex Offender Management Board is wasting significant amounts of public money on supervision in the community, according to a report from Central Coast Clinical and Forensic Psychology Services.
The report, released earlier this month, also concluded that Colorado's system for classifying some offenders as sexually violent predators is hopelessly flawed and in urgent need of replacement. That means Colorado could be classifying the wrong people as sexually violent predators.
The findings were met with approval from advocates of reform for sex-offender treatment but with skepticism from a victims' group.
The report's recommendations, if adopted, could dramatically change the supervision of sex offenders, many of whom are now monitored for life.
There were 1,412 sex offenders under intensive supervision on probation in the state as of June 30, and 767 of those were under lifetime supervision, according to the Colorado Department of Corrections.
The report cited multiple problems with the risk scale that Colorado uses to identify sexually violent predators and concluded the state has "no credible data" to justify its use.
"There is an urgent need," the report said, to replace its method for calling someone a predator "with an instrument that is soundly developed."
The report also criticized treatment programs for relying too much on polygraph examinations as a means of measuring an offender's success.

Wednesday, January 29, 2014

Constitutional challenges by Missouri death row inmates to the state’s death penalty have been dealt a blow by a federal appeals court, reported the St. Louis Post-Dispatch.
The Eighth U.S. Circuit Court of Appeals in St. Louis ruled 7-3 that if lawyers for condemned inmates can’t point to a more humane execution than lethal injection — such as hanging or firing squad — they are not entitled to discover more about the pharmacy hired by Missouri to make the drugs for lethal injections.
Current Missouri law provides for lethal injection and gas — the method by which 39 people were executed from 1938 to 1965.
A bill pending in the House would add the option of firing squad executions consisting of five law enforcement officers chosen by the state corrections director.
Lawyers for the inmates have been trying to examine whether Missouri’s lethal injections carry the risk of an unconstitutionally excruciating death. But the Missouri Department of Corrections had argued that identifying the pharmacy could make it more difficult for the state to carry out the death penalty.

Lawyers for a group of inmates have argued that Missouri’s reliance on a compounding pharmacy in Oklahoma to produce pentobarbital for lethal injections could violate their rights to be free from cruel and unusual punishment. Compounding pharmacies, typically hired to produce small batches of drugs, do not come under the same degree of regulation as commercial pharmacies.
A three-member panel of the Eighth Circuit had previously upheld a lower court’s decision to provide inmates’ lawyers with the identity of the Oklahoma compounding pharmacy. But a decision by the full 8th Circuit reversed that decision.
Judge Steven Colloton, writing for a majority of the Eighth Circuit, ruled that lawyers for the inmates did not have a valid claim that the state’s execution protocol was unconstitutional, because they did not suggest “a feasible and more humane alternative method.”
Colloton pointed to the Supreme Court ruling in Baze v. Rees in 2008 that “capital punishment is constitutional” and it “necessarily follows that there must be a means of carrying it out.”
“But the plaintiffs do not allege that the risk of harm arising from the State’s current lethal-injection protocol is substantial when compared to known and available alternatives,” he wrote.
Three judges, in a dissent, said requiring condemned inmates to suggest alternate ways to die would be absurd.

Tuesday, January 28, 2014

Allegations of sex abuse across the country's prisons are on the rise, with nearly half of cases allegedly being perpetrated by guards, according to a new study conducted by the Justice Department, reported ABC News Radio.

The Bureau of Justice Statistics report documented more than 8,763 allegations of prisoner sexual victimization between 2009 and 2011, which they say is an 11 percent increase over the number of allegations documented in a report covering 2007-08.

The study found 49 percent of the unwanted sexual misconduct or harassment involved prison staff as perpetrators, in acts ranging from verbal sexual harassment to the most serious non-consensual sexual penetration.

Allen Beck, a Justice Department statistician and the study's co-author told ABC News that the increased reporting may not necessarily be a reflection of an actual increase in the incidence of sexual victimization, but could in part be attributed to the Prison Rape Elimination Act (2003), which is being implemented across the country after final regulations for the act were issued in May 2012.

"It's reasonable to believe that some of the increase may be related to the greater attention being paid to the issues as well as the better recording and reporting procedures to us," Beck said.
Bradley W. Brockmann, executive director of The Center for Prisoner Health and Human Rights at Brown University told ABCNews that although the study showed there was a rise in the number of reports of sexual abuse, those cases represented a minute fraction of the "extraordinary sexual victimization that goes on daily."

"The biggest challenge here is that prisons are closed doors," said Brockmann, who is also a civil rights attorney. "What happens behind those walls generally stays behind them. For somebody to speak out takes immense courage."
Of those substantiated cases, 84 percent of female staff-on-inmate sexual contact "appeared to be willing," compared with 37 percent of cases allegedly perpetrated by male staff, despite clear laws prohibiting any form of sexual contact between inmates and staff, reported ABC News Radio.

Brockmann, attributes some of those numbers to "the extraordinary vulnerability of particularly female prisoners, a disproportionate number of whom have also been victims of sexual, emotional physical abuse since childhood.

"It doesn't take a lot of coercion to result in what might appear to be consensual act, even though no sex behind bars between staff and inmate can be consensual," he said.

Monday, January 27, 2014

Kenneth Eugene Hogan convicted of stabbing a close friend to death more than a quarter-century ago was executed in Oklahoma on January 23, 2014, according to the Associated Press.

He was pronounced dead at 6:13 p.m. after he received a lethal injection at the Oklahoma State Penitentiary in McAlester.

Hogan admitted to stabbing 21-year-old Lisa Stanley but said he did so in self-defense after she lunged at him with a knife. Prosecutors said Hogan stabbed the woman more than 25 times in the back, neck and chest in January 1988, then knocked over several objects in her Oklahoma City apartment to make it appear as though she had been robbed. When interrogated, he gave police inconsistent statements.

"I am guilty for what I'm here for, and I take full responsibility for my actions," Hogan said in his final statement, as he lay strapped to the gurney in the death chamber. "And to Lisa's family, I say I'm sorry that I can't undo it.

"And I'm sorry to my family for all the pain I've caused," he said. Hogan went on to thank the family members who came to witness his death.

"There's a chemical taste in my mouth," Hogan said, seconds after the drugs were administered.

Hogan turned to look back at his family one last time. "I'm going. I'm going. I'm going," he exclaimed.

Hogan's face grew ashen as he took his last breaths. About six minutes passed from the time the dose was administered until Hogan was pronounced dead.

Norma Tressler, Stanley's mother, said in a statement after Hogan was executed that Hogan never attempted to make amends to her family for what he did. "He has shown absolutely no remorse for his actions," she said.

The state Pardon and Parole Board denied clemency for Hogan this month by a 4-1 vote. Hogan is the second person to be executed in Oklahoma this year.

Hogan's initial conviction was overturned in 1999 by an appeals court that said the jury should've been allowed to consider a verdict of manslaughter.

Oklahoma appealed to the U.S. Supreme Court, which in 2000 refused to reinstate Hogan's conviction. A different jury in 2003 convicted him again and sentenced him to die.

"Kenneth Eugene Hogan was sentenced to death by a jury of his peers for the heinous stabbing of Lisa Renee Stanley, who was a young wife and a promising student," Oklahoma Attorney General Scott Pruitt said in a statement Thursday. "My thoughts and prayers are with Lisa's family and friends."

Randy Bauman, Hogan's attorney, declined to comment earlier this week. Stanley's relatives wrote to the state in December, saying Hogan has had "26 years of appeals on his behalf, making our family relive that day over and over again."

"You destroyed me and my family," Tressler said. "I want peace and justice to be served for my daughter. I want for this nightmare to finally end. And on Jan. 23, 2014, I pray for closure. It is well past due."

Stanley's mother-in-law, Frieda Stanley, wrote that no amount of time could erase the memories she still has of the day of the crime and its aftermath.

"Lisa's little dog barking in the background, interviews at the police station and later picking out clothing for Lisa to wear at her funeral that would cover her wounds," she wrote. "Lisa's death and how she died is always with us and has shaped and formed us as individuals and a family."

Sunday, January 26, 2014

Last week the U.S. Supreme Court heard arguments about whether an anonymous tip was sufficient evidence to justify stopping and searching a vehicle, reported the McClatchy News Service.

During the hour-long oral argument Supreme Court justices sounded ambivalent about the answer. On the one hand, conservatives and liberals alike suggested public safety stops make sense on roads where drivers have necessarily given up some privacy.

“In a context where we have approved sobriety checkpoints, why should we get bent out of shape over this?” asked Justice Elena Kagan, an Obama administration appointee.

Chief Justice John Roberts Jr. and Justice Antonin Scalia, both Republican administration appointees, added escalating examples that included tips about small explosives, kidnapped children and an atomic bomb aimed at the heart of Los Angeles, all in an effort to see where legal lines might be drawn.

“You get an ‘A’ for consistency,” Justice Anthony Kennedy told Berkeley-based defense attorney Paul R. Kleven, who was resisting admitting exceptions to a rule against relying on an anonymous and uncorroborated source, but “I’m not so sure about common sense.”

Kleven insisted that “officers acting on anonymous tips must corroborate the tips’ assertion of illegal conduct, as well as the identifying details, before making a stop, whether that tip involves erratic driving, illegal gun possession or any other allegation of misconduct.”

But in a sign of the case’s complexity, some of the same justices who sounded sympathetic to police searches in order to protect the public raised equally pointed questions about limiting such searches. Roberts repeatedly raised the possibility of malicious tipsters spreading false information, while several wondered how serious a tip needs to be before being acted upon.

“What if the call is . . . he didn’t have his seat belt on?” Roberts asked.

Jeffrey M.K. Laurence, California’s supervising deputy attorney general, stressed that “the threat to public safety” justifies stopping and searching a car for which a tip has been received, adding that “the public knows what they see when they make these calls.” Laurence further declared that “we have to take the seriousness of the offense into account” in making any decision.

Underscoring the high level of interest, Florida led 31 other states in a legal brief supporting California law enforcement officials, while the Obama administration also joined in on California’s behalf.

“They serve a critical government interest in removing drunk drivers from the road,” said Rachel P. Kovner, assistant to the solicitor general.

Justice Clarence Thomas, as is his custom, was the only of the nine justices not to speak or ask questions during the oral argument. A decision is expected by the end of June.

Saturday, January 25, 2014

Last week’s much maligned
execution of Dennis McGuire in Ohio is just the latest in a series of high
profile events that have defined the state’s “tortured” history of lethal
injection. McGuire was executed with an untested two-drug lethal injection
protocol.

The two drugs,
midazolam, a sedative, and hydromorphone, an opiate derivative, resulted in an execution
that took an excruciating 25 minutes instead of an anticipated 10 minutes.

Ohio’s lethal
injection woes began in September of 2009. Romell Broom, a condemned killer,
was scheduled to be executed. On that day, personnel in the death chamber of
Lucasville State Prison were unable to access a suitable vein for the injection
of the three-drug lethal injection protocol used at the time. Over several
hours, prison staff probed for a vein approximately 18 times before Gov. Ted
Strickland stopped the execution.Ohio put executions on hold
for three months while it studied options for establishing an alternative
lethal injection protocol. The state came back and took the unprecedented step
of moving from a three-drug protocol to a single-drug protocol.

The single-drug
method has since been adopted by seven other states—Arizona,
Georgia, Idaho, Missouri, South Dakota, Texas, and Washington—according to the Death
Penalty Information Center.Kenneth Biros was the
first inmate in Ohio, and across the country, executed using a single drug. He died about 10 minutes after the lethal dose
of Pentobarbital, an anesthetic, was administered. Attorneys for Biros had argued that state's new, untested would be painful and unconstitutional. The argument was made in front of U.S. District Court Judge Gregory Frost.Judge Frost's name would continue to pop-up throughout the unusual, and at times confounding, twists and turns taken by the Ohio Department of Rehabilitation and Correction with regard to the state's lethal injection protocol.Frost said Ohio's execution system still had flaws that "raised profound concerns and present unnecessary risk." He described the new single-drug protocol as "impermissible human experimentation." However, he said Biros' arguments against lethal injection were "unpersuasive."

In less
than a year, Frost again reversed course and gave tepid approval to the
scheduled execution of Mark Wiles. “The protocol is constitutional as written,
and executions are lawful, but the problem has been Ohio’s repeated inability
to do what it says it will do,” he wrote.

Subsequently,
Frost continued to overrule objections to lethal injection. Last year, morbidly
obese inmate Ronald Post argued he was so overweight he could not be put to
death humanely. Frost disagreed.

Last fall, Ohio announced that it had
run out of its lethal injection drug, pentobarbital. The state then moved to
the untested two-drug protocol and Dennis McGuire was slated to be the first
execution under the new protocol.McGuire challenged the protocol and like the other lethal injection challenges the case made its way to Judge Frost. He ruled that McGuire had failed to present sufficient evidence that he would unconstitutionally suffer."There is absolutely no question that Ohio's current [two-drug] protocol presents an experiment in lethal injection processes," Frost wrote. However, he refused to stop the execution.

According
to the Columbus Dispatch, the
chemicals began flowing into McGuire at about 10:29 a.m., and for a while, he was
quiet, closing his eyes and turning his face up and away from his family.

However,
about 10:34 a.m., he began struggling. His body strained against the restraints
around his body, and he repeatedly gasped for air, making snorting and choking
sounds for about 10 minutes. His chest and stomach heaved; his left hand, which
he had used minutes earlier to wave goodbye to his family, clenched in a fist.

McGuire
eventually issued two final, silent gasps and became still. He was pronounced
dead at 10:53 a.m.

(Matthew
T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book The Executioner’s Toll, 2010 is
due out this summer. You can reach him at www.mattmangino.com
and follow him on Twitter @MatthewTMangino)

Friday, January 24, 2014

This week, the U.S. Supreme Court heard arguments in a case to determine whether a victim of child pornography can collect millions of dollars from a defendant who viewed the images on a computer.
The woman, known only as Amy, was trying to convince the justices that people convicted of possessing child pornography should be held liable for the entire cost of the harm suffered by the victim.
The defendant Doyle Randall Paroline is appealing the lower court’s order holding him responsible for nearly $3.4 million in restitution associated with the ongoing Internet trade and viewing of images of Amy being raped by her uncle when she was 8 and 9 years old.
Paroline was sentenced to a two-year prison term and 10 years of supervised release. The FBI sent images from his laptop to the National Center for Missing and Exploited Children, which identified Amy. The U.S. attorney's office alerted her lawyers, who submitted a request for restitution.

The case is the result of Congress' passage of the Sexual Exploitation and Other Abuse of Children Act, which established penalties and restitution for sexual assault, domestic violence and child pornography.
Since Amy’s images were discovered, federal authorities have identified more than 3,200 cases in which they were downloaded. They have won court orders for restitution totaling more than $1.7 million in 182 cases.
This case will test the concept of "joint and several liability" -- whether participants in a crime can be assessed the full cost, regardless of how many others were involved. Such an arrangement makes it easier for victims to get full restitution; violators have the burden of seeking contributions from others convicted for the same offense.
The justices were sympathetic.
"The woman has undergone serious psychological harm because of her knowledge that there are thousands of people out there viewing her rape," Justice Antonin Scalia said, later adding, "Each person increases the amount of her psychological harm."While the justices agreed she deserves the money, they didn't agree that Paroline should be asked to pay it all. "Some limiting principle has to come into play," Justice Stephen Breyer said. Paroline's culpability in dollars and cents appears to have been "plucked out of the air," said Justice Elena Kagan.
A decision is expected this summer.Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.

Thursday, January 23, 2014

Texas executed a Mexican citizen on January 23, 2014. Edgar Tamayo Arias, 46, was put to death at 9:32 p.m. Central time for killing a Houston police officer in 1994, according to the Los Angeles Times.

Tamayo's attorneys fought until the last minute to save his life, appealing to the U.S. Supreme Court for a stay of execution. It was denied. They argued that Tamayo had been deprived of his rights because, as a foreign citizen, he should have been informed of his right to diplomatic assistance under an international treaty known as the Vienna Convention on Consular Relations.
Tamayo's lawyers turned to the high court after the U.S. 5th Circuit Court of Appeals rejected their appeal that Tamayo was developmentally disabled, mentally ill and ineligible for execution.
"If he had had the assistance of the Mexican Consulate at the time of trial, Mr. Tamayo would never have been sentenced to death," his attorneys, Sandra Babcock and Maurie Levin, said in a statement after the Supreme Court refused to grant a stay. "This case was not just about one Mexican national on death row in Texas. The execution of Mr. Tamayo violates the United States' treaty commitments, threatens the nation's foreign policy interests, and undermines the safety of all Americans abroad."
Earlier this week, the state parole board denied Tamayo's request for clemency.
Tamayo was put to death for shooting Officer Guy Gaddis, 24, who had been with the department for two years. His wife was expecting their first child.
Senior Houston Police Officer Ray Hunt, president of the Houston Police Officers' Union, was outside the death chamber in Huntsville on Wednesday with about 20 other officers, some in uniform. Several knew Gaddis, he said.
As Gaddis' mother, two brothers, sister-in-law and uncle entered to witness the execution, they shook the officers' hands and thanked them, Hunt said.
Clark said Gaddis' mother thanked the officers again after the execution.
"We believe that Mr. Tamayo got every right guaranteed to him as any person who was here legally," Hunt said, adding that the execution was "as much justice as the family can get."
Tamayo made no last statement.

America is on track for its lowest murder rate in nearly 40 years, writes Professor David M. Kennedy in the Huffington Post. Kennedy is the Director of the Center for Crime Prevention and Control at the John Jay College of Criminal Justice. Below are excerpts from his article:

There's an important point the year-end media round-ups are missing: there is a method to the growing lack of madness in America's cities. Most of the cities making headlines -- Chicago, down 18 percent, to the lowest level since 1965; New Orleans, down almost 20 percent, to the lowest level since 1971; Baton Rouge, down over 20 percent; Philadelphia, down a quarter, to the lowest level since 1967; New York, down 20 percent, to an absolute historical record low; Oakland, down 29 percent, the single largest reduction in 40 years; Stockton, down 55 percent, the single largest reduction ever -- are using the same basic method to stop the killing. There is something that can be done about the urban homicide that has plagued the nation for generations, these cities are doing it, and it is working.

Indeed, focus is one of the important things these cities have in common. A growing body of criminological evidence shows that serious violence (and much other crime) is concentrated among remarkably small numbers of "hot" people and places. We now know that homicide and gun violence are overwhelmingly concentrated among serious offenders operating in groups: gangs, drug crews, and the like representing under half of one percent of a city's population commit half to three-quarters of all murders. We also know some reliable predictors of risk: individuals who have a history of violence or a close connection with prior victims are far more likely to be involved in violence themselves. Hot groups and people are so hot that when their offending is statistically abstracted, their neighborhoods cease to be dangerous. Their communities aren't dangerous; they are.

In Chicago, New Orleans, Baton Rouge, Philadelphia, Oakland, and Stockton -- all cities where homicide, not homicide reduction, has made headlines for years -- a community, social service, and law enforcement partnership identifies group members with extensive criminal histories and engages them in meetings -- "call-ins" -- to demand an end to violence, explain the legal risks they face, and offer them help. Chicago has added "custom notifications" and is using new social network analysis techniques to identify the hottest and most vulnerable people and give them individualized messages about their vulnerability, the help available to them, and their legal risks.

Wednesday, January 22, 2014

Oklahoma Gov. Mary Fallin has asked the new Department of Corrections director to evaluate a public safety bill that many believe has not been funded adequately, reported the Tulsa World.

Last week, the Board of Corrections tapped Robert C. Patton to replace Justin Jones, who resigned last year from an agency that is plagued with crowded prisons, poor staffing and low morale. Patton is coming from the Arizona Department of Corrections, where he was the division director of operations.

In 2012, Fallin signed House Bill 3052 by then-House Speaker Kris Steele, R-Shawnee, who is no longer in office.

Dubbed the Justice Reinvestment Initiative, the highly touted public safety measure was designed to curb prison crowding and improve public safety.

It called for the creation of "intermediate revocation facilities" for those who make technical violations of probation and parole and deter them from regular incarceration.

It also called for additional officers to supervise for nine months those leaving custody. Those two key elements have yet to be funded.

Tuesday, January 21, 2014

In decisions widely hailed as milestones, the United States Supreme Court in 2010 and 2012 acted to curtail the use of mandatory life sentences for juveniles, accepting the argument that children, even those who are convicted of murder,are less culpable than adults and usually deserve a chance at redemption.

But, according to the New York Times, most states have taken half measures, at best, to carry out the rulings, which could affect more than 2,000 current inmates and countless more in years to come, according to many youth advocates and legal experts.

“States are going through the motions of compliance,” Cara H. Drinan, an associate professor of law at the Catholic University of America told the Times, “but in an anemic or hyper-technical way that flouts the spirit of the decisions.”

Lawsuits now before Florida’s highest court are among many across the country that demand more robust changes in juvenile justice. One of the Florida suits accuses the state of skirting the ban on life without parole in nonhomicide cases by meting out sentences so staggering that they amount to the same thing.

Other suits, such as one argued last week before the Illinois Supreme Court, ask for new sentencing hearings, at least, for inmates who received automatic life terms for murder before 2012 — a retroactive application that several states have resisted.

Monday, January 20, 2014

The Supreme Court will take the next step in applying traditional notions of privacy to emerging advances in technology, announcing it will consider whether police need a warrant to search the contents of a cellphone they seize when making an arrest, reported the Washington Post.
Government officials contend cellphones are no different than other items that the court over the years has said police may search when they find them on the individuals they arrest.
But defendants and privacy groups say modern cellphones contain a wealth of information that traditionally has been off-limits. In one of the cases the court accepted, a federal appeals judge said they contain a vast array of information that traditionally has been kept in the home: “photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, web search and browsing history, purchases and financial and medical records.”
In trying to apply Supreme Court precedents about the constitutional protection from unreasonable searches to modern technology, lower courts are deeply split.

Sunday, January 19, 2014

Just a week before Christmas, President Barack Obama's decision to exercise his rarely used authority to forgive was indeed a surprise. The president issued 13 pardons representing a quarter of all pardons granted during his five years in office.

One of those who received mercy was the first cousin of Massachusetts Gov. Deval Patrick. In 1994, Reynolds Allen Wintersmith Jr., of Rockford, Ill., was given a life sentence on charges of dealing crack cocaine. No one is suggesting that Patrick used his influence to get his cousin a pardon. He had no involvement in Wintersmith's application for clemency.

However, what is of concern is that a member of Patrick's family could benefit by an act of executive clemency and still as governor of Massachusetts, Patrick refuses to pardon a single individual. He is not alone in his disdain or disregard for clemency. In fact, even as Obama pardoned 13 offenders he has been as stingy as any president when it comes to forgiveness.

American presidents are empowered by Article II, Section 2 of the U.S. Constitution, "to grant reprieves and pardons for offenses against the United States."

A ProPublica analysis of Justice Department statistics last November found that Obama had granted pardons at a lower rate than presidents Ronald Reagan, George H.W. Bush, Bill Clinton or George W. Bush had at the same point in their administrations.

Obama has pardoned only 52 people. President Harry S. Truman pardoned 1,537 people. In fact, Truman pardoned his first prisoner eight days after taking office -- an office he assumed by the death of Franklin Delano Roosevelt, not through an election. In contrast, according to the New York Times, Obama waited 682 days into his presidency before using his power.

Obama is not to be blamed for clemency falling out of vogue. The demise of the pardon is a byproduct of being "tough on crime." Draconian sentencing laws driven by the war on drugs, prisons bursting at the seams, and a never-ending parade of new laws criminalizing everything imaginable are also evidence of a system run amok.

Obama is not the only executive throttling clemency.

On the last day of 2013, and for the first time in his three years in office, New York Gov. Andrew Cuomo issued pardons to three people who had completed their sentences. Advocates and editorial boards have, for his entire governorship, pressured Cuomo to exercise his power to pardon.

Wisconsin Gov. Scott Walker hasn't granted a single pardon since taking office. His office says he has no immediate plans to use his clemency authority. Recent governors from both parties have pardoned hundreds of offenders. A Walker spokesperson told the Milwaukee Journal Sentinel that the governor "believes these decisions are best left up to the courts."

Michael Albano, a member of Massachusetts' Governor's Council, wants to see more clemency, "It is my hope this act of clemency by the president will lead Gov. Patrick to rethink his position on pardons and take similar action in Massachusetts." The last pardon in Massachusetts was made by Gov. Jane Swift, who left office in 2003.

New York, Massachusetts and Wisconsin have traditionally been more progressive than other states. The reluctance of these three governors to act may be a harbinger of things to come, and that is unfortunate.

The corrective power of the pardon, when used in a principled and honorable fashion, has the capacity to redeem the authority of the justice system and instill an element of compassion in an otherwise impersonal, callous and mechanical system.

Avoiding that fundamental executive responsibility out of a fear of the political consequences is a failure in leadership and a growing injustice.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner's Toll, 2010" is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

Saturday, January 18, 2014

(WKBN-TV) An Ohio killer's unusually slow execution amounted to torture, the man's adult children said Friday as they announced plans to sue over his death.

Dennis McGuire's son, also named Dennis, and McGuire's daughter, Amber, referred to the "agony and terror" of watching him as he appeared to gasp in his final moments Thursday.

McGuire, 53, was put to death using a new combination of drugs to end life through lethal injection.
The entire execution took approximately 26 minutes, causing many to doubt the new procedure.

Legal expert Matthew Mangino said he is not surprised a suit is being filed and expects this case to be the beginning of legal moves against lethal injection, possibly slowing down Ohio’s scheduled executions.

“It obviously raises concerns about the process when you’re using a new protocol, and it takes so long to complete the execution,” said Mangino. “I think the fact that this execution didn’t go as planned might open the door to the other condemned inmates asking for this protocol to be reviewed.”

"The question is whether or not the state of Ohio should duplicate the actions of a criminal. And our answer is no," Rion said. "If we are going to condemn the actions of a person as being wrong because it creates pain, because it creates victims, because it creates an injustice, because it deprives people of life unjustly, then the state of Ohio should not duplicate those actions.

(WKBN-TV) The case against Jordan Brown is heading to the Pennsylvania Supreme Court.

Brown, who is now 16, remains in a juvenile detention center for killing his father's pregnant girlfriend five years ago. He was arrested in 2009 for killing Kenzie Houk and his case is undergoing yet another appeal.

Brown originally was charged as an adult and that was the first appeal, which resulted in him being tried as a juvenile. In April of 2012, a judge found him "delinquent" or guilty of the murder.

That decision was then overturned by the Pennsylvania Superior Court, but the Attorney General wants the Pennsylvania Supreme Court to listen to their arguments as to why the guilty ruling should be upheld.

"This may not be the last stop if the Supreme Court would uphold the Superior Court's decision, which says he's entitled to a new trial. Then we're going to go back to the trial stage in front of the Lawrence County judge and this case will be adjudicated again," said legal expert Matt Mangino.

Oral arguments are scheduled in the Pennsylvania Supreme Court on March 12, which is two weeks after the five-year anniversary of the crime.

McGuire was sentenced to die for raping and fatally stabbing a pregnant woman in 1989.

The New York Times reported that McGuire was given midazolam, a sedative, and hydromorphone, a powerful analgesic derived from morphine, just before 10:30 a.m., the first time that any state has used that combination. The drugs were selected by the Ohio Department of Rehabilitation and Correction after the state’s supply of pentobarbital expired in 2009, said JoEllen Smith, the department’s spokeswoman. A federal court had approved their use, she said.

A reporter for The Columbus Dispatch, one of the witnesses at the execution, described Mr. McGuire as struggling, gasping loudly, snorting and making choking noises for nearly 10 minutes before falling silent and being declared dead a few minutes later.

“Whether there were choking sounds or it was just snorting, the execution didn’t go the way it was supposed to go,” said Deborah Denno, a professor at Fordham Law School and an expert in lethal injection cases. “Usually, lethal injection takes about four or five minutes, if done properly.”

Thursday, January 16, 2014

Congress' massive appropropriations bill approved this week, has extinguished a longstanding U.S. Justice Department program to help improve state and local juvenile justice systems--the Juvenile Accountability Block Grants (JABG), according to The Crime Report.

The action continues a trend of reducing federal aid for juvenile justice projects. The JABG program, created by Congress in the 1990s when juvenile crime was a much more prominent public issue, had dwindled to only a $25 million budget last year, tiny by Washington standards. Its allocation had been reduced 90 percent since fiscal year 2002, says the Coalition for Juvenile Justice, a private organization that represents juvenile justice interests in Washington.

Overall, the federal bill reduces federal spending on juvenile justice by $11 million to $255 million, but it increases grant money to states from $44 million to $55 million.

The Coalition for Juvenile Justice released a statement concerning the cuts, "(We are) deeply disappointed that the appropriators chose to terminate the much-needed Juvenile Accountability Block Grant (JABG) program. JABG funding has enabled states to develop and implement essential system improvements including the hiring of key staff, the development of alternatives to detention, and the training of juvenile justice professionals in evidence-supported and accountability-based practices."

Wednesday, January 15, 2014

Last week the Pennsylvania Supreme Court updated the Code of Judicial Conduct, the first changes since 1992, reported the Philadelphia Inquirer.
Pennsylvania's 450 judges are now barred from hiring relatives and must bow out of cases in which any of the lawyers have given them substantial campaign donations as well as remove themselves from corporate boards.
These are among the highlights in a revised code that now stretches to 41 pages - three times the length of the old one. Most of the changes take effect July 1, though judges have until July 1, 2015, to step down from corporate boards.

The judicial canons, as they are called, are not criminal statutes, but judges have been suspended and even removed for violating them.
The new code says judges "shall avoid nepotism, favoritism, and unnecessary appointments." The old one said judges should only appoint "on the basis of merit, avoiding favoritism." The old one did not contain the word nepotism.
In another major change, the new code says judges should disqualify themselves in cases in which lawyers before them have given campaign donations big enough to "raise a reasonable concern" about their ability to be fair.
This change brings Pennsylvania into line with a 2009 U.S. Supreme Court decision that ordered the chief justice of West Virginia to recuse himself from a $50 million case against a coal company whose chief executive had spent $3 million to help elect him.
The new rule requiring judges to step down from for-profit corporate boards, except those of family-owned businesses, also is in line with the model code.

Tuesday, January 14, 2014

A man was executed by lethal injection in Oklahoma on January 9, 2014 almost 20 years after orchestrating the brutal assault and robbery of his co-worker at a Tulsa convenience store, reported the Associated Press.

Oklahoma had also carried out the last death sentence of 2013 on December 17, according to the Death Penalty Information Center (DPIC), which counted 39 executions in the United States during the year.

Monday, January 13, 2014

The shortcomings of Ohio’s hate-crime law have emerged in the recent attacks on gays and transgender victims in Cleveland. The law’s failure to include sexual orientation and sexual identity is amplified by the fact that Cleveland and Akron are preparing to host the 2014 Gay Games.
Ohio joins 14 other states — including Pennsylvania, West Virginia and Indiana — that have failed to include sexual orientation and gender identity in their hate crime statute. Only five states have no hate crime statute whatsoever. Fifteen states and the District of Columbia have hate-crime laws that include sexual orientation and gender identity and the remaining 15 address only sexual orientation, according to the National Gay and Lesbian Task Force.
Ohio law broadly defines hate crimes as criminal acts motivated by prejudice or intolerance and directed toward a member of a gender, racial, religious or social group, according to the Ohio Bar Association website.
Aspect of a crime
Ohio’s hate crime statutes are not stand-alone statutes meaning that the “hate” aspect of a crime is punishable either through a “penalty enhancement” or as a “discretionary sentencing factor.”
The only Ohio statute that speaks directly to hate crimes is “ethnic intimidation.” The statute prohibits specific existing conduct when carried out for reasons of race, color, religion or national origin of the victim.
The inadequacy of Ohio’s hate-crime statute was evident last month, when the body of a 52-year-old disabled, transgender woman, was discovered by her caregiver at an assisted living facility in Cleveland. A second transgender woman was found the next morning shot to death in a car along a Cleveland street.
“These are crimes of hate,” Ed Tomba, deputy chief of the Cleveland Police Department told the (Cleveland) Plain Dealer. “We acknowledge that, make no mistake about it, but as far as the law goes ... we will take these two crimes to the federal government, we will ask them to review them and see if they fall under the hate crime statute.”
In 2009, President Barack Obama signed the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act — both sexual orientation and gender identity are specifically included in federal law. The law extended the federal hate crimes statute protecting people against violence based on sexual orientation and gender identity along with race, religion, gender, national origin and disability.
Justice Department
In Ohio, local police must present the evidence of a hate crime based on sexual orientation and gender identity to the FBI and the U.S. Department of Justice, which ultimately decides whether to pursue the case in federal court.
Last fall, two gay men were attacked outside a well-known LGBT bar in Cleveland. Police arrested two individuals last month, including a 13-year-old boy, in connection with the two assaults.
Attacks based on sexual orientation are nothing new. Ohio Department of Public Safety records indicate 16 percent of hate crimes are based on sexual orientation, ranking it behind race at 48 percent and disability at 18 percent, but ahead of crimes based on ethnicity and religion.
However, efforts to include sexual orientation and gender identity in Ohio’s hate-crime statute have failed. A bill proposed in 2011 would have inserted “sexual orientation, gender, identity and disability” into the hate crimes statute. The bill never made it out of committee.
A new bipartisan hate crime bill introduced several months ago would once again attempt to include sexual orientation, gender identity and disability in Ohio’s statute.
‘Fairness’
The new bill introduced by Rep. Nickie Antonio has Republican and Democratic co-sponsors. “The majority of Ohioans value fairness and do not support hate crimes committed against any group,” Antonio told the Plain Dealer. “All Ohioans should be protected from intimidation and fear.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com.

Sunday, January 12, 2014

MATTHEW T. MANGINO, Times Guest ColumnistDelaware County Daily Times
January 6, 2014

The holidays are over and the season was full of surprises -- none more than President Barack Obama’s decision a week before Christmas to exercise his rarely used authority to forgive. On Dec. 19, the president issued 13 pardons representing a quarter of all pardons granted during his five years in office.

President Obama is, as were the 43 presidents who preceded him, empowered by Article II, Section 2 of the U.S. Constitution, “to grant reprieves and pardons for offenses against the United States.”

As President Bill Clinton wrote in the New York Times more than a decade ago, “A president may conclude a pardon or commutation is warranted for several reasons: the desire to restore full citizenship rights, including voting, to people who have served their sentences and lived within the law since; a belief that a sentence was excessive or unjust; personal circumstances that warrant compassion; or other unique circumstances.”

A ProPublica analysis of Justice Department statistics last November found that President Obama had granted pardons at a lower rate than presidents Ronald Reagan, George H.W. Bush, Bill Clinton, or George W. Bush had at the same point in their administrations.

President Obama has pardoned only 52 people. President Harry S. Truman pardoned 1,537 people. In fact, Truman pardoned his first prisoner eight days after taking office -- an office he assumed by the death of Franklin Delano Roosevelt, not through an election. In contrast, according to the New York Times, President Obama waited 682 days into his presidency before using his power.

President Obama is not to be blamed for clemency falling out of vogue. The demise of the pardon is a byproduct of being “tough on crime.” Draconian sentencing laws driven by the war on drugs, prisons bursting at the seams, and a never-ending parade of new laws criminalizing everything imaginable are also evidence of a system run amok.

The first Supreme Court case to address a president’s power to pardon defined it as “an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed.”

This “act of grace” has been used by presidents and governors to right wrongs, provide a ray of hope to those imprisoned and to empower elected leaders to forgive, to bestow a sense of decency and empathy for those in prison who are sick and dying.

President Obama is not the only executive throttling clemency. In Pennsylvania, clemency for serious offenders, no matter how long ago their crimes, has all but disappeared.

Article IV, Section 9 of the Pennsylvania Constitution vests exclusive authority in the governor to grant reprieves, commutations and pardons. The governor may exercise the authority for any reason or no reason at all—with the exception of capital cases and sentences of life in prison. In those cases, the governor can only commute or pardon upon receipt of a unanimous recommendation from the Pennsylvania Board of Pardons.

It was not always like that in Pennsylvania. In 1994, Gov. Robert P. Casey paroled Reginald McFadden, who was serving a life sentence for murdering an elderly Philadelphia woman. By a 4-1 vote, the Board of Pardons recommended clemency for McFadden.

Not long after his release, McFadden murdered two more people in New York.

According to the Philadelphia Inquirer, the news broke a month before the 1994 gubernatorial election, and was credited in part for Tom Ridge’s victory over then-Lt. Gov. Mark Singel, who had been among the pardons board members voting for McFadden’s release.

Between 1971 and 1994, there were on average 12 life sentences per year commuted. Since 1995, there have been six. Gov. Ed Rendell commuted five life sentences, Gov. Mark Schweiker commuted one, Gov. Tom Ridge zero and Gov. Tom Corbett has yet to commute a life sentence.

There is no question that the power to pardon has been abused in the past. The seemingly arbitrary manner in which a president or governor can act in matters of clemency has fueled a disdain for this unique authority.

However, the corrective powers of the pardon when used in a principled and honorable fashion has the capacity to redeem the authority of the justice system and instill an element of compassion in an otherwise impersonal, callous and mechanical system.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010” is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

Saturday, January 11, 2014

There are killers walking among us. Even though the homicide rate has shrunk to near record lows, there are more unsolved murders than ever. While law enforcement officials tout declining homicide rates, little is heard of abysmal “clearance rates.”

The clearance rate is traditionally defined by calculating the annual number of homicides solved divided by the number of homicides recorded in a given year. Each year, police departments across the country send their homicide statistics to the FBI. Each department reports the number of murders in a year and the number that were cleared in that year. The numbers are not necessarily related: Crimes cleared in one year might have occurred in a prior year.

A murder committed in 2012 and solved in 2013 affects the clearance rate for 2013. A city could end up with more murders solved in a year than were committed. In fact, one year Palm Beach County, Fla., reported a 114 percent clearance rate — 28 murders, 32 murders solved.

Even though the numbers as reported are alarming, there is some concern that they may be even worse. The Washington Post revealed in 2011 that the District of Columbia’s clearance rate was “a statistical mishmash that makes things seem much better than they are.”

Inevitably, more than 3 in 10 murderers are going to get away with their crime. Former New York City Police commissioner Raymond Kelly told the New York Daily News, “I think the clearance rate is going to remain at roughly 70 percent, give or take. That’s just the way it is. There are … certain homicides that will never be solved. We don’t necessarily want to make that public, but that’s just the way it is.”

Nationally, the percentage of homicides that go unsolved has risen dramatically. In the 1960s about 90 percent of homicides were solved. According to the FBI, the average homicide clearance rate in the U.S. in 2012 was 62.5 percent.

There were 14,827 murders in 2012. Approximately 5,500 remain unsolved. Combine those with the nearly 185,000 cases of homicide that, according to a Scripps Howard News Service study, went unsolved from 1980 to 2008 and the numbers point to an alarming trend.

The question is why?

John Jarvis of the FBI Academy in Quantico, Va., and Wendy C. Regoeczi of Cleveland State University suggest that the dramatic decline in homicide clearance rates can be attributed to a number of factors. The expansion of defendant rights such as Miranda and increased legal constraints on police practices with regard to search and seizure have hampered investigative efforts.

They also cite changes in the nature of murder. There has been an increase in stranger killings — felony-related killings like drug deals gone awry and drive-by shootings.

Changes in societal factors such as community support for police have also impacted the ability to solve murders. Witness intimidation and the "no snitch" culture means fewer witnesses cooperate with police and fewer crimes are solved.

The limited resources available to local police departments, cut backs in training and the loss of a pool of talented detectives through retirement has also taken a toll on clearances rates.

"As a nation, we have higher homicide rates and lower homicide-clearance rates than any westernized country, because we have almost nonexistent gun regulation," Ratcliffe said. "We allow people to kill each other at some distance. It's pretty difficult to have a drive-by stabbing, but it's really easy to have a drive-by shooting."

Whatever the reason, fewer killers are being apprehended and more of them are living, working and playing right in our midst.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book "The Executioner’s Toll, 2010" is due out this summer. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

Friday, January 10, 2014

A Florida man who spent nearly 40 years on death row for killing a Miami couple and later stabbing a prison guard to death with a sharpened spoon was executed on January 7, 2014, reported the Chicago Tribune.

Askari Abdullah Muhammad, 62, who was known as Thomas Knight when he killed his former employer and his wife in 1974, was pronounced dead at 6:45 p.m. from a lethal injection, said Misty Cash, a spokeswoman for the Florida Department of Corrections.

Muhammad won a stay of execution last month after he legally challenged the use of a sedative, midazolam hydrochloride, as the first in a series of three drugs used for lethal injections in Florida.
The state switched to midazolam last year when makers of another sedative, pentobarbital, refused to supply it to states using the drug in executions.

Attorneys for Muhammad said the new drug was an ineffective sedative and caused inmates to suffer pain when the subsequent two drugs - a paralytic agent and heart-stopping drug - were administered to complete the injection process.

A Florida circuit judge ruled, however, there was insufficient evidence of pain in two previous executions carried out with midazolam last year.

Muhammad was sentenced to death for the 1974 murders of Sydney and Lillian Gans in Miami. Muhammad had previously worked for Gans at a paper bag company, and abducted him from a parking lot with a rifle, forcing Gans to drive home and get his wife before making them withdraw $50,000 from a bank.

He shot the couple in the back of their heads and fled but was captured a short time later.

Muhammad escaped while awaiting trial and was implicated in the fatal shooting of a liquor store clerk in October 1974 in Cordele, Georgia. He was not charged in that case but was returned to Florida for trial in the Gans murders.

In 1980, while on death row, Muhammad stabbed correctional officer Richard Burke while being escorted to a shower room. Three years later, he was sentenced to die for Burke's killing.

Muhammad made a final appeal in late December, arguing that the state withheld evidence of his mental condition that might have disputed premeditation in the slaying of the prison guard.

The state's highest court rejected that appeal without comment the day before the execution.

Lt. Ed Trapp of the Pittsburgh Police department said officers wore the cameras for six months beginning in September 2012, before realizing the camera’s violated the state’s wire-tap act. The department took them off the streets.

While officers were using the cameras, the number of complaints against officers appeared to go down, Trapp said.

A study by Police Foundation, which promotes innovation in policing, showed an 88 percent drop in complaints and a 57 percent drop in use of force after members of a California police department began wearing body cameras. The 12-month study began in February 2012.

Trapp said the pen-size cameras will be visible on the helmets of motorcycle and bike officers and can also be worn on the baseball caps of patrol officers.

State Sen. Stewart Greenleaf, has proposed an amendment to the Wiretap Act to permit recording devices on police motorcycles, bicycles, horses and uniforms.

Right now the law only allows for dashboard cameras mounted in police vehicles. Some in local law enforcement believe the cameras can help in criminal cases and would reduce citizens’ complaints about police officers.

Greenleaf’s legislation was combined in the House of Representatives with legislation to amend the Wiretap Act to allow school districts to install audio recorders on buses, which are already equipped with visual cameras.

The Senate now must vote on the amended bill when the legislature returns for the 2014 session.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His book The Executioner's Toll, 2010 is due out this summer.

Thursday, January 9, 2014

Matthew T. ManginoThe Crime Report
January 7, 2014
Trial by jury has become so rare in modern American criminal jurisprudence that the chance of being convicted at trial is little more than one in one hundred.
That doesn’t mean that people are not getting convicted. They are—in record number. America’s prisons are literally filled to capacity.
In today’s criminal justice system, convictions come by agreement. The tradition of being tried by one’s peers, established centuries ago and affirmed by the Sixth Amendment to the U.S. Constitution has all but disappeared.
The plea bargain has made jury trials obsolete.
Ninety-seven percent of federal criminal prosecutions are resolved by plea bargain. In state courts the numbers are comparable. The plea bargain may be the grease that keeps the criminal justice system churning, but it may also be a sign of a system in need of repair.
Judge John Gleeson, of the U.S. District Court for the Eastern District of New York recently wrote, “An excessively high rate of guilty pleas is unhealthy for our justice system.”
Why? The only scrutiny a case may receive in federal court is that afforded by a grand jury and, as long-time Manhattan District Attorney Robert Morgenthau once said, he could get a grand jury to indict a “ham sandwich.”
At trial the government must prove a defendant guilty beyond a reasonable doubt. The government must firmly convince the jury of every element of the offense and that the defendant was the person who committed the crime.
But, as Gleeson observed, “Our [grand jury] system permits indictment to be returned on an ex parte presentation consisting entirely of inadmissible evidence.”
Much of the evidence presented to a grand jury would never see the light of day in a jury trial. The burden of proof before a grand jury requires merely a showing of probable cause; it does not require showing guilt beyond a reasonable doubt, and does not need unanimity of the grand jurors.
State court cases are often vetted at a preliminary hearing. The standard of proof required at that stage is prima facie. This means the government must prove it more likely than not a crime has been committed, and that the defendant is the one who committed the alleged crime.
The burden falls well below the “beyond a reasonable doubt” standard.
“The notion that defects in the grand jury’s screening function will come out in the wash at trial is sound only if a meaningful percentage of cases go to trial,” wrote Gleeson.
The three percent of prosecutions which go before a jury is not a meaningful amount. As a result, the cleansing effect of trial has all but disappeared. “Beyond a reasonable doubt”— the bedrock of the criminal justice system—plays no role in an alarming number of cases.
What this means is that an insignificant number of offenders heading off to state or federal prison were proven guilty of anything. Sure, those defendants acknowledged their guilt by choosing to enter a guilty plea; but shouldn’t the most revered legal system in the world provide something more in terms of protection for those accused of a crime? For 97 out of 100 people accused of a crime in federal court, all that has been proven against them is that a crime has been committed and that they “probably” committed it—the same standard that permits a police officer or federal agent to make an arrest.
Proof beyond a reasonable doubt never enters the equation.
So what is the big deal? No one innocent of a crime would plead guilty, right?
Some alarming statistics suggest that there is some incentive to enter a guilty plea regardless of guilt or innocence.
In some jurisdictions, particularly federal court, the gap between sentences following a plea and sentences following a trial has gotten very wide.
According to Human Rights Watch , the average sentence for federal drug offenders who pleaded guilty was five years, four months, based on raw federal sentencing data for 2012; for those convicted after trial the average sentence was 16 years.
A system that lowers the threshold for proving guilt and creates incentives for the innocent to plead guilty is “unhealthy” indeed.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George and the former district attorney for Lawrence County, PA. You can read his blog at www.mattmangino.com and follow him on twitter @MatthewTMangino. He welcomes comments from readers.

Tuesday, January 7, 2014

The second season of “ My Dirty Little Secret” on
Investigation Discovery will feature Attorney Matthew T. Mangino.Mangino will be featured on Wednesday in the
crime drama which airs at 9 PM.

The
hour long episode, titled “The Stripper’s Secret” tells the story of Ben Novak
whose bound and brutally beaten body was found in a New York hotel room. Novak
was heir to the Miami Beach Fontainebleau Hotel fortune and his 2009 murder made
national headlines. Mangino was interviewed along with investigators, friends
and acquaintances of the victim.

Mangino
is an attorney with Luxenberg, Garbett, Kelly and George, P.C. He is the former
district attorney of Lawrence County and a former member of the Pennsylvania
Board of Probation and Parole. My Dirty Little Secrets will be broadcast on Comcast
channel 104 and Armstrong Cable channel 420/HD138.

A decision by the Pennsylvania Superior Court on Dec. 26 could have an impact on the prosecution of three former Penn State University officials facing charges stemming from failing to properly deal with reports of child sexual abuse by Jerry Sandusky.

The decision in Commonwealth v. Lynn, 2171 EDA 2012, reversed the conviction of Monsignor William Lynn, a former official of the Catholic Archdiocese of Philadelphia implicated in the sex-abuse scandal plaguing the church in Philadelphia.

According to a 2011 report prepared for Penn State by former FBI Director Louis Freeh, university officials were aware of sexual abuse allegations against Sandusky for at least 14 years and still gave him access to the school's campus.

Former Penn State President Graham Spanier, former Vice President Gary Schultz and former athletic director Timothy Curley are accused of concealing information about suspected child abuse involving Sandusky, including on-campus incidents from 1998 and 2001 that were reported and discussed in great detail by the three men, according to a press release from the Pennsylvania Attorney General's Office.

The timeline suggested in the release may be crucial to Spanier, Schultz and Curley's defense in the aftermath of the Superior Court decision in Lynn.

Schultz and Curley are each charged with two counts of endangering the welfare of children and two counts of criminal conspiracy, third-degree felonies. Schultz and Curley are also charged with one count each of obstructing the administration of law or other governmental function and one count of criminal conspiracy, both second-degree misdemeanors. The Freeh Report found that Schultz expressed concern that allegations against Sandusky would open a "Pandora's box."

Spanier is charged with one count of perjury, two counts of endangering the welfare of children and two counts of criminal conspiracy, all third-degree felonies. Additionally, Spanier is charged with one count of obstructing the administration of law and one count of criminal conspiracy, both second-degree misdemeanors, along with one count of failure to report suspected child abuse, a summary offense.

Lynn's conviction, for which he had been serving three to six years in prison, was based on his supervision of a priest, Edward Avery. Prosecutors argued that Lynn, who was the secretary for clergy in Philadelphia between 1992 and 2004, knew Avery was a sex offender but continued to assign him and other priests, also known to be abusers, to new parishes, according to media reports.

Lynn's attorney Thomas Bergstrom argued that the endangering the welfare of children (EWOC) statute, 18 P.S. 4304, applied "only to parents and caregivers, not supervisors." Therefore, the statute did not apply to Lynn in his supervisory capacity.

The thrust of Lynn's appeal continued to focus on whether or not his conduct fell under the application of the EWOC.

The current EWOC statute reads as follows: "A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

However, prior to Jan. 29, 2007, the EWOC statute, 18 P.S. 4304(a)(1), read: "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

Lynn's attorney argued before the Superior Court that the pre-2007 version of EWOC as defined was too narrow to support Lynn's conviction. The statute confines its coverage to parents, guardians and other people "supervising the welfare of a child." He also argued that the newly worded statute did not apply because of the timing of the conduct.

"Given the pre-2007 timeframe of [Lynn's] conduct, the amended statute is not applicable in this case," Superior Court President Judge John T. Bender wrote.

For Spanier, Schultz and Curley, the most serious charges they face are the EWOC and conspiracy charges, all of which are felonies. Spanier is also charged with perjury, a felony. Attempting to prove the three men were accomplices of Sandusky may also be a nonstarter for the prosecution.

In Lynn, the Superior Court also addressed whether Lynn was an accomplice in the crime. There was no evidence that Lynn knew the victim of sexual abuse or that he conspired with Avery's plans to abuse the boy, the Superior Court concluded.

"In sum, the evidence was insufficient to demonstrate that [Lynn] acted with the 'intent of promoting or facilitating' a EWOC offense" committed by Avery, Bender wrote. Prosecutors would face the same hurdles in the Penn State prosecutions.

The Attorney General's Office has suggested that Penn State officials put the reputation of the university ahead of the welfare of the young people abused by Sandusky, in the same way that the Philadelphia District Attorney's Office argued that Lynn put the reputation of the Catholic Church or the archdiocese ahead of the victims of abuse.

The Superior Court addressed that very issue in the Lynn opinion. "The question of whether appellant's priorities were more with the reputation of the church, or, instead, with the victims of sexual abuse at the hands of archdiocese priests is not at issue in this case."

The relevant question was whether there was sufficient evidence to demonstrate Lynn intended to promote or facilitate a subordinate priest's endangerment of a child while under the care of that priest.

"Having determined that the evidence was not sufficient to support [Lynn's] conviction for EWOC either as a principal or as an accomplice, we are compelled to reverse appellant's judgment of sentence," Bender said.

The Superior Court's decision appears to match a key argument put forward by attorneys representing the defendants in the Penn State case. "The court was very clear and very adamant that the statute didn't apply to [Lynn] and he was wrongfully, wrongfully convicted," Bergstrom told The Philadelphia Inquirer.

According to Bergstrom, Lynn never should have been prosecuted for allegedly putting children in harm's way. Bergstrom told the Inquirer: "The Superior Court followed years of their own precedent and found, as we've argued, that the statute didn't apply to him, at all. It's a crime he cannot commit and didn't commit."

Pittsburgh attorney Caroline Roberto represents Curley. She told the Pittsburgh Tribune-Review, "The charges are an example of prosecutorial overreach, and we will continue to vigorously fight the charges."

Sandusky retired in 1999, therefore the pre-2007 EWOC statute should apply. When the law was changed, Curley, Schultz and Spanier were no longer Sandusky's supervisors. The law in effect when Sandusky was in the employ of Penn State would not result in Sandusky's supervisors being held criminally responsible.

We may not have heard the final word on this matter. Philadelphia District Attorney Seth Williams said he will more than likely appeal the Superior Court's decision. The attorney general will undoubtedly be watching Lynn very closely.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, "The Executioner's Toll, 2010," is due out this summer. Reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

About Matt

An analysis of crime and punishment from the perspective of a former prosecutor and current criminal justice practitioner.
The views expressed on this blog are solely those of the author and do not reflect the opinions or postions of any county, state or federal agency.